Social media can be harmful to your job, legal experts say

Be careful what you say on social media sites such as Facebook and Twitter: What you post could come back to haunt you or even cost you your job.

That was the message from lawyer Daniel Burnick of Sirote & Permutt during a free labor seminar, "Navigating the Social Media Minefield: Dangers of Social Media in the Workplace," Tuesday at the law firm's Southside office.

Burnick shared several examples of workers who found themselves suspended or fired after making comments on social media sites. Among them:

Jeff Toole, the chief financial officer for Texas A&M's athletic department, thought he anonymously posted derogatory comments criticizing university president R. Bowen Loftin. Toole posted on an A&M fan website, "If A&M had a competent president, I would be less worried as well, but it doesn't. It has a hopelessly under-qualified puppet as president."

Upon being caught, Toole stated, "I do of course fear that I will not long be employed. There is freedom of speech, but not freedom from consequences."

Toole retains his job, but is under fire, said Burnick, noting that folks shouldn't assume they won't be revealed as poster of comments even if using a pseudonym.

Rebecca Thypulle, an HR manager, provided her employer a copy of a jury summons requesting jury duty leave for an eight-day trial. While gone, her supervisor saw the summons on her desk and saw it had been addressed to her father, who lived with her.

While on "jury leave duty," Thypulle posted online that she was on her way to Baltimore to dinner and a comedy show. As a result of her conduct, she was fired from her job, Burnick said.

Journalist Caitlin Curran was fired after her boss saw her holding a sign at an Occupy Wall Street protest on Twitter.

Burnick said every day there are numerous examples of folks making inappropriate comments or posting pictures that get them in trouble on the job. "If it is something you wouldn't want your mother to see or read, don't post it," he said

Employers must take careful steps to ensure their social-media policies balance protection of company reputation and information with respecting employee rights, said Donna Brooks, a labor lawyer with Lehr Middlebrooks Vreeland in Birmingham. Businesses need to really think about what is important to them, how much employee expression about the workplace they want to encourage or allow, and what special confidentiality issues they may face, she said.

A recent survey by Workplace Options, a Raleigh, N.C.-based consulting firm, found that 89 percent of workers feel employers have no right to demand personal social networking passwords. In the wake of getting criticism about employers requesting worker passwords, Congress is currently considering the Password Protection Act of 2012. It would prevent companies from demanding such personal information.

"I think this survey really just points out that employers should be careful in crafting overly intrusive social media policies," Brooks said. "A good social media policy helps employees by giving them advance notice of the employer's expectations regarding the use of weblogs and social media sites. We have seen employees be very surprised that their postings on social media sites could have ramifications at the workplace."

Employees often tend to think that social-media postings are private and therefore should not be a concern for their employers, Brooks said.

"Unfortunately, the line between personal time and work time is blurring due to technology while, at the same time, the potential ramifications to employers of employees misusing social media expression are increasing because technology allows those comments to reach so many people."

The National Labor Relations Board has stepped into the social-media debate. The NLRB's acting general counsel released a memorandum last August that reviews unfair labor cases considered in the past year that involved social-media issues.

The NLRB found that the use of profanity or name-calling (such as referring to a supervisor as a "scumbag" on Facebook or Twitter) doesn't necessarily mean the comments aren't protected by federal freedom of speech laws. Brooks said some employers who don't have a union workforce falsely assume the National Labor Relations Act doesn't apply to them.

"In general, Section 7 of the NLRA applies to all workplaces, union or not," she said. "Section 7 generally prohibits employers from interfering with an employee's right to join or assist labor unions, but it also prohibits employers from interfering with employees' protected concerted activities, even where those activities are unrelated to unions and union-organizing activity. So, some of the cases we have seen are where employees have vented about their boss or their pay, and the question can come up: Was that protected activity?"

Exceptions, Brooks said, include frequent use of unprofessional, profane language, or the disclosure of confidential information.

"Disciplining employees for those types of posts is generally fair game for employers," she said.